Moorehead v. Moorehead

—In two related proceedings for child custody pursuant to Family Court Act article 6, the mother appeals from so much of an order of the Family Court, Putnam County (Sweeney, J.), entered April 17, 1992, as granted joint legal custody of the children and which awarded physical custody to the father. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. The petitioner Dennis Moorehead and the cross petitioner Gina Moorehead separated in July 1990. Their daughter Alyssa was then three and one-half years old, and their son Dennis, Jr., was then one and one-half years old. Gina Moore-head initially retained physical custody of the parties’ two children. However, the weight of the evidence establishes that within less than one year, on February 2, 1991, she agreed in writing to transfer de facto custody of the two children to Dennis Moorehead. As a consequence, Mr. Moorehead has now had custody of the two children for approximately two and one-half years. The testimonial evidence presented at the hearing of the petition and cross petition was, we acknowledge, equivocal as to whether Gina Moorehead’s express renunciation of her child custody rights was fully voluntary. Mrs. Moorehead cannot deny, however, that on February 2, 1991, she did in fact express a willingness to relinquish her right to physical custody of the two children and that she did so in a written document drafted by her own hand. We cannot accept the hypothesis that Mrs. Moorehead’s written abdication from her role as custodial parent was the product of some sort of mental or physical duress. More accurately, we find that if Mrs. Moorehead’s surrender of custody was the product of any [518] sort of "duress”, it was the sort of "duress” which is naturally felt by any single parent required to cope with two young children while holding down a full-time job. Mr. Moorehead testified that on Saturday, February 2, 1991, one day before he was supposed to visit with the children, Mrs. Moorehead appeared at his house, declaring that she "couldn’t handle them anymore [and] that she didn’t want them anymore”. According to Mr. Moorehead, Mrs. Moore-head told him that "[he] could have them”, that he could have "full custody” and that "she couldn’t put up with them anymore”. Mr. Moorehead said that his wife then told him that she wanted "reverse custody”. At Mr. Moorehead’s suggestion, Mrs. Moorehead expressed this desire to transfer custody in the written document previously referred to. Mrs. Moorehead’s testimony that her behavior on February 2, 1991, was attributable to "cabin fever”, that is, to the sensation of stress intrinsic to her role as a single parent, has the unmistakable ring of truth. Her testimony that Mr. Moorehead physically prevented her from leaving his house and in effect threatened to hold her captive unless she relinquished custody, does not. We find, in other words, that the weight of the evidence establishes that on February 2, 1991, Mrs. Moorehead felt a strong psychological need to be free of her children for at least that day, and that it was this subjective emotional need or desire on her part, rather than the objective exercise of any duress on the part of Mr. Moore-head, which induced her to draft and to sign the document acknowledging her willingness to transfer physical custody of her two children. Dennis Moorehead commenced the present proceeding almost immediately after the extra-judicial transfer of custody which had occurred on February 2, 1991. After a hearing, the court awarded physical custody to Mr. Moorehead. The court, in its decision, suggested that it had been swayed by "testimony that the children seem to be much healthier, better disciplined and in a more regular lifestyle now that they are living with their father”. The court also expressed concern about proof which tended to show that Mrs. Moorehead may have failed appropriately to respond to certain accidental injuries suffered by the children. The findings of fact in the hearing court’s decision are entitled to deference (e.g., Matter of Irene O., 38 NY2d 776), and we decline to disturb them on this appeal. The single rule of law which applies in this case is the [519] familiar one which binds both this Court and the Family Court to make whatever custody order would be in the best interests of the two children (e.g., Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89; see also, Matter of Radford v Propper, 190 AD2d 93). On appeal, both parties marshal the evidence in an attempt to demonstrate their own superiority as parents. We find that neither one has succeeded in this endeavor, because both are equally fit. We also conclude that where, as in the present case, the evidence supports the conclusion that the two parties love their children equally and are equally able to care for their children, the nature of the children’s "best interest” must be determined not by the futile method of enumerating and contrasting the various shortcomings of each parent, but rather, by considering the importance of a value which is of central importance in disputes of this nature: stability. "Where there is no indication that a change in custody will result in significantly enhancing a child’s welfare, it is generally considered in [the] best interest [of the child] not to disrupt [the child’s] life” (Pawelski v Bucholtz, 91 AD2d 1200, 1201; Matter of Garcia v Doan, 132 AD2d 756, 757). In other words, the maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight (see, e.g., Matter of Nehra v Uhlar, 43 NY2d 242, 251; Matter of Sullivan v Sullivan, 190 AD2d 852; Matter of Krebsbach v Gallagher, 181 AD2d 363; Robert C. R. v Victoria R., 143 AD2d 262; Richman v Richman, 104 AD2d 934). " 'Stability of the child’s environment and a reluctance to uproot [the child] from familiar surroundings, quite properly is a relevant and important consideration where the custody dispute is between parents’ ” (Matter of Golden v Golden, 95 Misc 2d 447, 449, quoting from 2 Foster-Freed, Law and the Family New York § 29:5, at 510). As noted above, the younger of the parties’ two children, who was born in 1989, was one and a half years old when the parties separated, and two years old when, in February 1991, Mrs. Moorehead yielded custody. This boy, now four and a half years old, has thus lived most of his life with his father. If the 1991 de facto transfer of custody had been accomplished improperly, by kidnapping or "self-help”, for example, then there might be valid social reasons for discounting the importance which would otherwise ascribe to the maintenance of stability in the child’s life (cf., Matter of Nehra v Uhlar, 43 NY2d 242, supra). However, as outlined above, this child’s current custody status, as well as that of his sister, was [520] brought about by the voluntary, albeit precipitous decision of the mother, and we therefore conclude that there are no social or legal reasons not to give substantial weight to the interest which both children have in the maintenance, rather than the disruption, of the status quo. This is not to say that a long-lasting custody arrangement may not be disrupted where it is possible to conclude that such a disruption would serve the best interest of the child. Stability is important, but not decisive. If it were possible to say that Mrs. Moorehead loved her children more than Mr. Moorehead, that she was better able physically or financially to care for them, or that the two children themselves fared better while in her custody than while in that of Mr. Moore-head, then the result might be different. However, we have examined all of the relevant factors, including the evidence as to the environment furnished in each of the parties’ homes (e.g., Eschbach v Eschbach, supra; Matter of Krebsbach v Gallagher, supra), the evidence as to the parties’ relative financial prosperity (e.g., Eschbach v Eschbach, supra; Matter of Krebsbach v Gallagher, supra), and the evidence as to the parties’ relative ability to provide for the physical, intellectual, and moral welfare of their children (e.g., Eschbach v Eschbach, supra; Porges v Porges, 63 AD2d 712), and can point to nothing upon which to base a conclusion that the children would be better off living with their mother. In sum, we think that, all other factors being equal, the Family Court’s determination should be upheld in the interest of avoiding disruption. "Because there are no countervailing circumstances that would warrant a change in the custodial arrangement that has existed for the past [two and a half] years, we find that the trial court’s determination was proper” (Zucker v Zucker, 187 AD2d 507, 508), and the order appealed from is affirmed. Thompson, J. P., Bracken and Copertino, JJ., concur.